Onward Trademark Soldiers? Newsboys Cannot Stop the Rap Music

“Lately I’ve been thinking / What would the world do without the news / You wouldn’t know when wars were started / Or when they ended, win or lose.” Newspapers by Stan Ridgway

Yesterday’s IP blogosphere brought news of another battle of the bands involving trademark rights. Christian rockers the Newsboys did not turn the other cheek when they discovered a rap duo performing as New Boyz. They sued. And they lost. Bigtime. Oh, the Newsboys got their day in court all right, but it lasted just about one day, with the judge tossing the complaint as legally deficient. The Newsboys claimed that the rappers’ name New Boyz would confuse and confound the music buying audience. They railed that the New Boyz songs were sexually charged. They pointed to their own 1991 album title “Boys will be Boyz” as evidence that the groups’ names were too close for comfort. And the band that had honed its reputation in the realm of Christian Rock insisted that their music was not just for the religious set; they claimed “cross-over” appeal to the same “demographic” that listens to and downloads New Boyz allegedly salacious songs.

But the secular audience who mattered–the judge–was not buying it. He granted the New Boyz’s motion to dismiss the trademark infringement charges as implausible, concluding that the Newsboys’ “factual allegations of customer confusion do not include any factual allegations of confusion about the source of each band’s marketed music.” Influencing the court’s ruling was the focus of the Newsboys’ federal trademark registration–”live musical performances of a religious nature.” The two groups market their music to two distinctly different crowds, making the Newsboys claims of confusion and damage to reputation apocryphal, according to the court. In short, the judge hewed to the ancient adage “live and let live,” and stopped the trademark fight on a TKO–failure to plead enough facts to get to round 2.

This case joins a line of music themed trademark cases allowing similar names to coexist when used for different genres. Perhaps the granddaddy of all is Sunenblick v. MCA Records, Inc., 895 F. Supp. 616 (S.D.N.Y. 1995), aff’d, 101 F.3d 684 (2d Cir. 1996): where the jazz record label Uptown Records lost its trademark battle against popular rap record label Uptown, with the court concluding that the urban music geography was big enough for two Uptowns.

And of course, we only have to scan the bins of the few remaining brick and mortar record stores to see that bands with similar names often coexist without sparking nasty trademark battles. Pop-rocker Bryan Adams rubs shoulders with Alt. Country Rocker Ryan Adams, while The Who and The Guess Who have played in peace for nearly six decades.

So, while the ending of the Newsboys’ story may seem abrupt, the result, at least for now, seems to be in tune with history. If there’s a moral to the story, it may be this, it’s one thing for a band to claim that its music has crossover appeal, it’s another thing to prove it.

QUOTE OF THE DAY: “In the case of news, we should always wait for the sacrament of confirmation.” Voltaire